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  #21  
Old 10-30-2015, 05:59 PM
silverstaff silverstaff is offline
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Hello everyone,

Here's the report of what happened today.

There wasn't a ruling yet, but it may well have been the last time this goes to an actual courtroom. Things may come to a final ruling in December.

I walked in to the room at 9:30 this morning, the attorney for the state was there. The administrative judge called the hearing to order, and said that, after reviewing the motions and complaints, he felt that the case could be decided purely on the law, without need for testimony, if both sides were willing to stipulate to the facts of the case. He said that in looking over the case, the vast majority of the facts of the case seemed uncontested, so it would save substantial time if they could be stipulated.

The judge also noted that per prior rulings on motions in this case, the burden of proof is on the State to prove my dismissal was lawful, as it's presumed to be an unlawful dismissal thanks to a state law that says if you take military leave, you can't be dismissed without cause for one year.

The attorney for the state and myself sat in the courtroom for an hour and a half going over the various papers we brought, stipulating to the general facts of the case, and agreeing on the various documents.

The Director of the agency was also in the courtroom, on behalf of the Agency, since the attorney represented the department of state government, above the Agency.

I didn't have to confront any witnesses, as the judge basically said that at this point, he didn't see how anything any witnesses would say would change the legal facts of the case, and the attorney for the state couldn't explain why or how any witnesses would change any facts of the case.

The Director was NOT happy when he heard about how I was treated, the fact that he'd mentioned in passing before the hearing how his son was a Marine probably didn't help. He was trying to remain professional, but it was clear he didn't like hearing about what had happened.

The fact that he remembered meeting me when I was at the Academy, and I made a positive impression helped. It was a little awkward when I had to introduce as evidence an e-mail he sent (that came up in the discovery process), since he had to approve the termination personally, where he described the documentation and justification he was presented with (also submitted into evidence) as "seriously subpar" and wanted to know if I was part of any "protected class" before he approved the termination. The e-mails showed that my supervisors pressured him to approve the termination, despite his reservations that the justification, even doing it as a purely discretionary probationary employee termination was weak.

I now have a month to write and submit a brief based on the evidence, basically to make my case that I was an employee, took military leave, and was terminated without cause within a year of that leave. The judge did want clarification on a couple of points of law to be addressed in the brief, technicalities about definitions of military duty as defined in state law (basically, if I'd volunteered for the assignment, I wouldn't be protected by state law, but my entire unit was ordered to attend so I only "volunteered" in the sense that I chose to enlist, just like everyone in the military since the draft ended in 1973).

The attorney for the state was NOT happy with the fact that the burden of proof is on her to prove it was lawful. She basically said, indirectly that with that ruling there's no way she can win. She basically said her brief will be an argument to have the burden of proof shifted back to me, saying I should have to prove that I was discriminated against due to military status.

The only hiccup was, that in their timesheet records of my service, a 3-day training exercise I attended in June of last year was down in their records as me getting paid regularly, not military leave, so they are asking for evidence from my unit to confirm I was there in a duty status. I've got a call already in to my unit about that to get documentation.

  #22  
Old 10-30-2015, 06:53 PM
silverstaff silverstaff is offline
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Quote:
Quoth flyonthewall View Post
So if the state loses, will you get to come back to the force?
Yes.

The relief I've requested, and that's within state law for the judge to grant, should the judge rule my termination was unlawful, is to reinstate me to [AgencyName] as an Officer, at my prior pay grade, with seniority and regular pay raises as if I had never been fired. . .plus back pay from the time of my termination to my reinstatment (minus any unemployment benefits I have received), which would be a five-figure sum by now.

  #23  
Old 10-30-2015, 11:00 PM
silverstaff silverstaff is offline
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Quote:
Quoth Argus View Post
A cross-examination that ended like the one in "A Few Good Men" would have been more entertaining, but this was probably the best realistic outcome.

Presumably, the supervisors claimed you weren't, despite your military status.

Reporting to whom? I hope not the same supervisor as before. (Although from the sound of things, he is now in hot water with the Director.)

Oh, and do you still have that shirt you mentioned earlier in this thread?
Yes, in the e-mails, my supervisors told the Director I wasn't in any protected class.

I specifically have requested in prior motions that I wish to be be assigned to another office of that agency in the state that is within commuting distance (there are easily 3 that I can think of within a one hour commute of my house), as I feel that sending me back to that same office may create a hostile work environment.

I still have that shirt, it's sitting in a drawer in my dresser in my bedroom. Upon reinstatement I plan to wear it my first day back on the job.

Also, yes, I had thought of the "A Few Good Men" bit too beforehand, if I'd have to try to get my former supervisor to actually admit it on the stand (the fact that my former supervisor bears at least a passing resemblance to a middle-aged Jack Nicholson does NOT help), and I was nervous at the prospect of it coming to that. This really is the best realistic outcome, because both the judge and counsel for the state admit that the law is very strongly on my side, and the Judge wants me to clarify a few technical points about my military service, and counsel for the State is basically begging the court to reconsider its prior ruling because it pretty much sinks their case and they admit it in court.

  #24  
Old 11-01-2015, 02:52 PM
silverstaff silverstaff is offline
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Quote:
Quoth Gilhelmi View Post
DOOOOM, as prophecy foretold, "those that cross the Director shall not pass".

Sounds like your former supervisor just crossed the Director. No matter the outcome of this case, poor performance reviews are in his future. I have the feeling that if you win though, things will be far more "unpleasant" between supervisor and Director.

December is going to be interesting. I will keep praying for you my brother.
Oh, it's worse than that.

I am not going to give details until this case is over, but at that hearing, he saw some evidence he really didn't like. He had to sign off on the termination, he saw evidence that the memorandum giving a list of reasons for the termination was. . .heavily embellished and in one case they actually cited something I did as a cause for termination. . .when I was able to present text messages from my supervisor explicitly giving me permission for that action, and then they turned around literally a few days later and used that as justification for termination in an internal memo.

So, not just the issue of military duties which is the legal crux of the case, but he saw that the information he was given about the reasons for dismissal was not entirely honest. That on it's own isn't legally actionable, but it makes it clear to the Director that beyond the military issue, my former supervisors were not being honest with him.

  #25  
Old 12-06-2015, 10:50 PM
silverstaff silverstaff is offline
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Quote:
Quoth Seanette View Post
We all have our popcorn ready. Update?
Not quite yet.

I had my hearing, I mailed in my brief last Monday (certified mail). The Personnel Board got the brief on Thursday. The attorney for the state got the brief on Wednesday. I got my copy of the brief from the state on Thursday, but I had a 3-day drill weekend with the National Guard over the weekend and just got in and haven't had a chance to read it yet.

My rebuttal, and the State's rebuttal, have to be filed by the 10th. Then it goes to the Board for a decision, which will take, well, who knows. Probably a few weeks or a month or so for them to issue a "Proposed Order", which is their legal findings and suggested course of action. Then I and the state will have a chance to comment on the course of action (but not the findings), like if they try to send me back to work with my former boss, I could ask to be reassigned (I requested to be assigned to a different office in my brief, I feel that going back to my old office could be a hostile work environment).

Then, after the period for comment has passed, they'll take the comments under advisement and publish a final order, which, assuming it's ordering my reinstatement and payment of back pay, would order the Personnel Cabinet to give me a start date at my old job title and pay a lump sum of my back pay from the time of my termination back at the end of February, to when my start date is (so pretty much a year's pay, after taxes and subtracting when they cashed out my vacation time and subtracting my unemployment benefits).

The next major update would be when I get the "Proposed Order" which has the legal findings in the case and the remedy that the Board suggests.

  #26  
Old 12-10-2015, 12:55 PM
silverstaff silverstaff is offline
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A mini-update.

Today I am mailing in my rebuttal brief, and with that it goes to the Board for a ruling.

Frankly, the brief in the state's case against me was a joke. It reeked of desperation and knowing they had no case to stand on.

It simply restated the same objections they made in their initial motion to dismiss, the exact same objections that the Board had already thrown out back in August. Plus basically begging the Board to not reinstate me, saying I shouldn't benefit from the protections for military servicemembers since my absence wasn't for a combat deployment and thus shouldn't really count.

Also, the state tried to claim that there was nothing wrong with requiring me to do work for my employer while on military leave, since I was not required to physically be present at the workplace at that time. . .yet the state laws that govern military leave explicitly say that someone taking military leave is temporarily relieved of all their duties.

My rebuttal is basically pointing out that the Board rejected these arguments already, noting that state law makes no legal difference between military leave for a one day drill and military leave for a year-long deployment, and pointing out that I didn't get the protection of my military leave rights because they were requiring me to work for them during military leave and they used the fact I couldn't complete that work as justification for my termination.

After today, it's in the Board's hands and I'm waiting on the ruling.

  #27  
Old 01-10-2016, 03:14 AM
silverstaff silverstaff is offline
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Quote:
Quoth Seanette View Post
Pinging for update.
Still checking the mail every day for a ruling.

Still nothing.

As of Monday it will have been a month since the filing deadline for the case, so they should be ruling some time soon, theoretically.

I'm nervous, very nervous. Been losing some sleep over it. Had a fight with my wife a couple of days ago over it. Tensions are running high with the Mrs. due to me being unemployed now for almost a year, since every single place I've applied to had refused to hire me, or wanted me to relocate to another city for a salary that was way too low to justify relocation (moving to Washington DC for a $50k/year contractor job isn't worth it), and even my prior agency has been absolutely silent on my request for reinstatement, neither granting my request or denying it. . .just refusing to even reply to the request.

If it's not in my favor, my next step is to contact an attorney for a Federal USERRA claim. The JAG at my unit says the Dept. of Labor will likely represent me.

Even if they choose not to, the Veterans Services office of my local Legal Aid agency is quite willing to. . .they just didn't feel comfortable representing me in an administrative hearing instead of a courtroom.

I know a Federal case will take years, and will de facto blackball me from a lot of jobs, so even if I win and a Federal court orders me reinstated, it'll make it next to impossible for me to be promoted or go to another agency.

A Federal case would hinge on the fact that they denied me my full military leave benefits by attempting to compel me to complete work while on military leave (or make assignments due when I would be on military leave), then penalizing me with a bad personnel evaluation due to this, and using those evaluations and missed reports as grounds for my termination.

. . .so I'm hoping for a favorable verdict so this can be concluded instead of stretching on for years to come. I'm nervous though, but hopeful.

  #28  
Old 01-18-2016, 12:40 PM
silverstaff silverstaff is offline
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Quote:
Quoth Kiwi View Post
anything???
Here's what's going on with me.

Still nothing from the Personnel Board. I keep checking the mail every day for a letter from them with their ruling. A shade over a month now and nothing. Since today is ML King day, I know the mail doesn't run today, so nothing at least until Tuesday.

I do have some good news about employment at least. The police department I used to work as an Officer for, the one I resigned from to take my position with the agency that fired me? I had requested reinstatement to my old position. . .and they had been COMPLETELY silent, no rejection, no acceptance, not even an acknowledgment of my request.

I had turned the request in, by hand, to my old Lieutenant, so I knew they had received the request.

I had assumed they were being silent because I had a case before the Personnel Board, or that because I had been terminated by another law enforcement agency. I knew they had to know about my case before the Personnel Board because at my hearing with the state, they had a copy of my entire personnel file from that department, they had apparently subpoenaed it.

However, the timeframe in which I'm eligible for reinstatement at that PD closes at the end of February, and I contacted my old Lt. to ask what was going on, because if they were waiting until the case was over, and it wasn't ruled in my favor. . .it might be too late to reinstate me.

Apparently they lost my reinstatement request, that someone in their HR branch had retired only a week or so after I had requested reinstatement, and they had left the personnel paperwork a royal mess on their way out (he didn't elaborate as to how).

My old Lt. was rather emphatic that I get a new copy of my reinstatement request to him so they can file the paperwork to get me back with them before my window for reinstatement with them is closed. So, I printed out another copy of my request for reinstatement and handed it in on Friday.

Hopefully it wasn't for show and I'll actually get back with them.

The thing is, even if the Personnel Board ruled in my favor, I'd rather go with my old police department. I rather miss working for them. The main reason I left was that I had a Sergeant there who was making life rough on me. . .and he retired last month. I left, for the job with another agency (the one that fired me) because he was making life rough on me, and because the job with the agency would pay about $100 more a paycheck, be plainclothes, have a Monday to Friday schedule, and work closer to my home.

. . .those improvements did NOT balance out the much higher stress level though, and I've found myself nostalgic for working for my old police department. Ironically I had worked out with my old Lt. a schedule that was much more amenable right before I got the call to interview for the job with the other agency. Things would have probably got better at my old job if I hadn't taken the job with the new agency.

If the Personnel Board finds in my favor to reinstate me, and my old PD reinstates me, I'm going to see if I can essentially resign my reinstatement with the agency that fired me effective to when I was reinstated with my old PD. I wasn't happy with the job that fired me, I was just hanging on until I was off my probationary period and could transfer around to another job in state government (that's the big irony, that if they had just let me finish my probationary period that would have concluded at the end of that week, I would have quickly transferred out, and I would have long since been out of their hair.), and if I had it to do over again, I wouldn't have taken the job with that agency. . .the stress was NOT worth the upsides of the job.

So. . .still waiting on word from the Board, but at least I have a good chance of at least being back to work within a month or so at a job I wouldn't mind.

  #29  
Old 02-03-2016, 02:48 PM
silverstaff silverstaff is offline
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Quote:
Quoth Kiwi View Post
I'm waiting on tenter hooks. Any news??
Still checking my mailbox every day waiting on word from the Personnel Board.

In my personal job hunt, I have good news about that reinstatement process with my old Police Department.

Last Tuesday, a week ago today, I got a call from a higher-up at the Department who wanted me to fill out personnel paperwork so they can process my reinstatement, so I rushed on that and had that to them the same day. I have a job interview with my state's emergency management agency on Friday, that I'm rather hopeful about.

I keep checking the mail every day waiting on word from the board. I'm on pins and needles.

Deep down, I'd rather get my old job back at my old PD or get the job with Emergency Management. . .but at least getting reinstated by the board would also give me a job, and a ruling in my favor should almost certainly include a very big payment of back salary.

  #30  
Old 02-05-2016, 06:09 PM
silverstaff silverstaff is offline
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Big News, everyone!

I got a letter in the mail today from the state Personnel Board, dated February 3, 2016.

. . .I won.

They ruled that my termination was unlawfully violating my rights to not be terminated due to taking time off for military duties.

They also specifically threw out the state's arguments against me as "flawed", and "irrelevant" especially the state's legal argument that to enjoy the benefits of that law I would have to fully resign from my job every time I took military leave (yes, they tried to argue that), and the other various non-sequitur arguments they tried to use.

They state in the "Findings of law and recommended Order" that I be reinstated to my old agency with back pay and full seniority as if I never left.

From here, both parties have 15 days in which to request an "exception", which is to say they can request some caveat or addendum to the order, but the board doesn't have to take them into account. After the final order is given, the state would have then 30 days to file an appeal in courts (actual regular courts of law, not a state Administrative Board) over this, but they could only bring up issues that they listed as "exceptions" in their first filing.

So, big win for me. Now to see if the state is going to keep fighting this (and take it out of the relative obscurity of admin boards and into public record with a court case) or if I get my job back quickly.
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